Pannell v. McGarity

Broyles, C. J. (After stating the foregoing facts.) In our judgment the court did not err in dismissing the affidavit of il [74] legality, as, under all the facts of the case, the trover proceedings did not constitute a rescission of the contract of sale for the automobile in question. The case of Glisson v. Heggie, 105 Ga. 30 (31 S. E. 118), and the other cases, cited and relied upon by counsel for the plaintiff in error, are quite different from this ease. While the Supreme Court made some rather broad and sweeping statements in the opinion in the Heggie ease, to. the effect that the bringing of an action in trover by the seller of personal property under a conditional contract of sale was equivalent to a rescission of the whole contract, yet the contract in that case contained no stipulation that the owner of the property had the right, if the note given for the purchase-price of the property sold was not paid at its maturity, to take possession of the property, sell it at public outcry, and credit the proceeds of the sale on the note, as was contained in the contract in the instant case. This distinction is a vital one. A party to a contract can waive any right he has under the law, provided he does not thereby injuriously affect the public interests or the interests of others not parties to the contract. Thus, in the instant case Pannell could, and, by signing the contract of sale, did, waive his right to insist that when McGarity brought the suit in trover and regained possession of the automobile in question, he (McGarity) could take no further proceedings to collect the balance of the purchase-price thereof. By signing the contract of sale, Pannell agreed, in effect, that if he failed to pay the purchase-money note when due, McGarity could take back the property for the purpose of selling it and crediting the proceeds of the sale on the note, without prejudice to his (McGarity s) right to collect the balance due on the note, and he is, in our opinion, estopped from asserting otherwise. Moreover, the Supreme Court, in the opinion in the Ileggie case, said: “We do not mean to say that on the trial of such an action of trover, when the plaintiff elects to take damages in lieu of the property, or when the defendant sets up an equitable defense asking that a recovery be had only for the balance of the purchase-money due, the court shall not instruct the jury to so mold their verdict as to protect the substantial equities and rights of the parties. What we do rule is, that when an election is made to take the property itself [italics ours], and it has been recovered by the plaintiff, this is a rescission of the.contract of purchase, [75] and no subsequent action can be had for any further recovery ” — the Supreme Court holding that under the facts of the case the property had been recovered by the plaintiff under a virtual election to take the property itself. In the instant case the judge was by consent sitting without the intervention of a jury, and the evidence, properly construed- — most strongly in favor of the verdict —-together with the inferences and deductions arising therefrom, .authorized-a finding that after Pannell failed to pay the purchase-money note when due he refused to turn back the property on McGarity’s demand, and that McGarity brought his suit in trover for the sole purpose of recovering possession of the automobile in order that he might sell it at public outcry and credit the proceeds upon the purchase money note, as he was authorized to do under the provisions of the contract of'sale. This makes another vital distinction between the Reggie case and the instant one. ■The general rule of law laid down in the Reggie case is sound and not open to criticism. The reason for it is obvious. The value of the property sued for in trover may have decreased or increased, and the plaintiff in the trover proceedings has the right to elect whether he will take back the property itself or recover its value. And where he elects to take the property itself, and does take it, he is estopped from thereafter claiming any of ita purchase-price that may remain unpaid. He is bound by his election. However, as has been said, this rule of law is not applicable to the facts of this case. Here the vendee obtained a valuable automobile and used it for many months without paying one cent for it, or for its hire, and refused to allow the vendor to take possession of it for the purpose stipulated in the contract of sale, and only returned it to the vendor after the trover suit was filed. All of this occurred months before the hearing on the trover suit, and upon that hearing the only issue involved was which party should pay the costs of the suit, and that issue depended solely upon the question whether or not the plaintiff had made a timely demand for the property; and the awarding of the property to the plaintiff by the jury was immaterial and uncalled for, and was properly treated as surplusage, in the judgment of the court, and does not affect the merits of the case. The plaintiff in this case did only what he had a right to do under the provisions of the contract of sale signed by the defend [76] ant; and when he sold the automobile and credited the proceeds of the sale upon the purchase-money note, the debt remained unsatisfied, and he thereafter had the right to collect the balance of the debt in any legal way that he could, and he accordingly was acting within his legal rights when he foreclosed his mortgage on the mules in question, and the court did not err in dismissing the affidavit of illegality. Judgment affirmed. Bloodworth, J., concurs. Luke, J., dissents.